Publications

Sorry for the delay in my updates this week — minor technical difficulties, hopefully now all resolved! Thankfully, there’s not much to report. The Court granted cert in one case on Monday, and issued one opinion today.

I’ll begin with the cert grant. Under the Federal Rules of Criminal Procedure, before a defendant is allowed to plead guilty, the judge must explain certain consequences of the plea to him in open court. In United States v. Benitez (03-167), the judge failed to tell the defendant that his plea could not be withdrawn even if the judge rejected the sentence recommendation in the written plea agreement. The Ninth Circuit found that this was plain error and reversed his conviction. The Court will take this case to decide the following question: To show that a violation of Fed. R. Crim. Pro. 11 constitutes reversible plain error, must the defendant demonstrate that he would not have pleaded guilty if the violation had not occurred?

Try to contain your excitement about the opinion: it’s about water rights in the Potomac River. That’s right, in Virginia v. Maryland (Orig. 129), the Supreme Court sitting as a trial court decided a case within its original jurisdiction that resolved a long-running dispute between Virginia and Maryland over the Potomac. (I use the phrase “trial court” loosely because they never really sit as a trial court. These people just can’t bring themselves to hear evidence or make decisions as an initial matter. They refer all their original jurisdiction cases to “Special Masters” and then they review the Special Masters’ reports. Today’s opinion was a review of the Special Master’s report that had ruled in favor of Virginia.) I’ve been trying to come up with something interesting about this opinion to write about, but I’m having a hard time, so bear with me. I’ll do my best to be brief.

Basically, Virginia and Maryland both claimed title/ownership of the Potomac, with each State tracing its claim to a royal charter. (Technically, Virginia is a Commonwealth, but that detail is not important here.) Eventually (in 1785, at Mount Vernon), the parties negotiated an agreement that provided, in part, that each state would have full property in the shores of the river adjoining its land and the right to build improvements that do not obstruct navigation on the river. This agreement did not resolve the boundary line, however, and so nearly one hundred years later, the states finally submitted this issue to binding arbitration. The arbitrators placed the boundary at the low-water mark on the Virginia shore of the Potomac. In the 1930s, Maryland established a permitting system for water withdrawals and waterway construction, and over the years issued nearly 30 such permits to Virginia entities. Then, in 1996, Maryland refused to issue Fairfax County a permit to build a water intake structure. Maryland eventually issued the permit — with conditions — thus precipitating Virginia’s claim in this case that was entitled to build the structure without any regulatory interference from Maryland. To make a long story short, the Court agreed with Virginia. In an uncharacteristically long opinion by the Chief (for everyone but Stevens and Kennedy), the Court interpreted the 1785 agreement and the arbitration award to allow each state to build improvements on its shores without any regulatory interference by the other state. I can’t get excited about anything else in the opinion, so I’ll leave it at that. I know it was a long opinion by the Chief, but that’s just because it was about a geography-type topic, and he loves geography. The Chief’s opinion provoked two dissents, by Stevens and Kennedy, both of whom joined the other’s opinion. (Query why they didn’t just write one dissent and both join it.) Stevens noted that Virginia had riparian rights in the Potomac, but that under basic common law principles, riparian rights are subject to regulation by the sovereign that owns the water body (here, Maryland). Kennedy disagreed with the Chief’s assertion that Maryland’s title to the River was in doubt because the parties had been fighting about ownership for so long. According to Kennedy, the fact that the parties were fighting over ownership did not eliminate or undermine Maryland’s claim to the River. (Kennedy’s dissent makes more sense if you really follow the Chief’s opinion, but since I haven’t described the majority any more completely, I’ll leave Kennedy’s dissent at that.)

That’s all for now. The Court could hand down additional opinions tomorrow, and in fact, I heard a rumor that they could hand down the campaign finance case tomorrow. Until then, thanks for reading!

Sandy

From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at www.wiggin.com.